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Hopper v. Austin

Court of Appeal of Louisiana, Second Circuit

March 4, 2015

GUINDOLYN HOPPER AND DALE HOPPER, Plaintiffs-Appellants
v.
WAYNE AUSTIN, STATE FARM MUTUAL INSURANCE COMPANY AND TRUCK INSURANCE EXCHANGE, Defendants-Appellees

Page 9

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana. Trial Court No. 562291. Honorable Ramon Lafitte, Judge.

JONES & ODOM, By: John S. Odom, Jr., Counsel for Plaintiffs-Appellants, Guindolyn Hopper and Dale Hopper.

LUNN, IRION, SALLEY, CARLISLE & GARDNER, By: Alexander J. Mijalis, Counsel for Intervenor-Appellant, Truck Ins. Exchange.

ADAMS AND REESE, By: Timothy M. Brinks, Counsel for Defendant-Appellee, Venator Contracting Group.

Before STEWART, DREW and GARRETT, JJ.

OPINION

Page 10

[49,628 La.App. 2 Cir. 1] STEWART, J.

Plaintiffs, Guindolyn and Dale Hopper (" the Hoppers" ), sued the defendant, Venator Contracting Group, L.L.C. (" Venator" ), under the theory of vicarious liability for damages stemming from an automobile accident. The Hoppers alleged that Wayne Austin (" Austin" ) was a Venator employee in the course and scope of his employment when he caused the accident that injured Mrs. Hopper. The trial court granted a summary judgment in favor of Venator upon concluding that, even if Austin was a Venator employee, he was not in the course and scope of his employment at the time of the accident. The Hoppers appealed. From our de novo review of the record, we find there are genuine issues of material fact as to whether Austin was an employee and whether he was in the course and scope of his employment when the accident occurred. Accordingly, we vacate the summary judgment and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

On November 4, 2011, Mrs. Hopper was involved in a four-vehicle accident on Youree Drive in Shreveport when a vehicle driven by Austin hit her Lincoln Navigator from behind. The force of the crash propelled her vehicle into the one ahead of her and caused that vehicle to hit another.

The Hoppers filed suit against Austin and his insurer, State Farm Mutual Automobile Insurance Company (" State

Page 11

Farm" ), as well as their own uninsured / underinsured motorist (" UM" ) insurer, Truck Insurance Exchange (" TIE" ). Subsequently, the Hoppers amended their petition to add Venator as a defendant. They alleged that Austin was in the course and scope of his employment by Venator as superintendent of a remodeling [49,628 La.App. 2 Cir. 2] project at the Copeland's Restaurant in Shreveport at the time of the accident. They further alleged that he was communicating with Venator by cell phone about the project at the moment the collision occurred.

In its answer and in a subsequently filed motion for summary judgment, Venator denied liability and asserted that Austin was an independent contractor on the remodeling project, not its employee. Alternatively, Venator argued that, even if an employee, Austin was not in the course and scope of his employment when the accident occurred. Venator specifically asserted that there was no competent evidence of the alleged cell phone communication at the time of the accident. Venator supported its motion for summary judgment with the affidavit of its president, David G. Schatzberg (" Schatzberg" ).

According to Schatzberg's affidavit, he and Austin conducted negotiations over the telephone in September 2011, which resulted in an oral contract for Austin to be the project superintendent for Venator's project in Shreveport. They agreed that Austin would work as an independent contractor, not a Venator employee, and that Austin's role would end upon completion of the Shreveport project. Austin's duties included overseeing the subcontractors and ensuring the project stayed on schedule. Austin was responsible for the day-to-day operations of the project, and he was authorized to use whatever reasonable measures he deemed necessary to carry out his responsibilities. Venator provided general oversight of the project from its home office in Michigan and handled financial issues related to the project. Venator paid Austin $1,250 per week, regardless of the number of hours he worked. Venator also agreed to pay for Austin's hotel [49,628 La.App. 2 Cir. 3] room while he was in Shreveport, as well as mileage for his initial travel to Shreveport from his home in Colorado and his return to Colorado upon completion of the job. Venator provided no other compensation or benefits. It did not withhold taxes from Austin's weekly pay; instead, it provided him a Form 1099 for tax reporting purposes. Austin was not required to use his personal vehicle for any purpose related to the project. He was not required to work set hours, other than being at the project site as needed or when subcontractors were present. Schatzberg denied that he or any other Venator employee was communicating with Austin when the accident occurred.

Attached to Schatzberg's affidavit was a copy of a September 2, 2011, email from Schatzberg to Austin confirming their negotiation of Austin's weekly pay and the mileage as stated above. The email states that Austin would need a digital camera and laptop computer or other way to communicate by email in order to send weekly reports.

In opposition to Venator's motion for summary judgment, the Hoppers offered an affidavit by Austin, which they asserted established that he was a Venator employee and was driving in the course and scope of his employment at the time of the accident. They argued that the opposing views of Austin's employment status ...


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